New rule to aid children born out of wedlock

November 11 2003 at 01:01pm
By David Yutar

In a ground-breaking judgment, the Cape High Court has ruled that the paternal grandparents of an illegitimate child have a legal duty to support that child.

Justice Burton Fourie on Tuesday ruled that the distinction between the duty of support of grandparents towards children born in wedlock on one hand and on the other, illegitimate children, "constitutes unfair discrimination on the ground of birth and amounts to an infringement of the dignity of such children" under the constitution.

The judgment, which overturns a long-established common-law precedent, ends months of litigation.

It started several months ago when an 18-year-old Seawinds mother, who works as a part-time hospital worker, asked the Cape High Court to compel her child's paternal grandparents to pay maintenance, since the father was unable or unwilling to do so.

In February, the mother, who earns only R600 a month, claimed maintenance of R1 000 from the child's father, 28-year-old Fagmie Abrahams, in the Simon's Town magistrate's court.

The father, however, told the court he could afford only R200 a month.

Until now South African law has been based on a 1930s appellate division case barring illegitimate children from claiming maintenance from their paternal grandparents.

Consequently, the law has imposed a duty on maternal and paternal grandparents to contribute towards maintenance where the child is legitimate, if the parents are unable to do so.

But in the case of an illegitimate child, only maternal grandparents have had a duty of support.

On Tuesday Judge Fourie ruled the common-law position at present was out of kilter with contemporary constitutional thinking and needed

amendment.

"I am of the opinion that this common-law rule which differentiates between children born in wedlock and extra-marital children not only denies extra-marital children an equal right to be maintained by their paternal grandparents, but conveys the notion that they do not have the same inherent worth and dignity as children who are born in wedlock."

The court held that in this case, the child's paternal grandparents had a legal duty to support him.

The judge ordered the maintenance officer of the court to launch an inquiry into their ability to do so.